Unfinished business at the conclusion of the Brexit bill
The EU (Withdrawal) Bill is rapidly approaching the end of its parliamentary journey, but it does so with a distinct whiff of unfinished business in relation to the environment.
At the outset, the environment was largely absent from the government’s narrative. There was little recognition of the governance gap that would be created upon the UK’s exit from the EU, or how environmental principles would be dealt with in the future. It took concerted pressure from Greener UK and intense parliamentary scrutiny to convince the government that these matters must be addressed.
Commitments aren’t enough
While the bill undoubtedly leaves parliament in a better state, we should be under no illusion: the commitments made are not yet good enough to achieve what is needed. The Defra consultation and forthcoming bill on environmental principles and governance offer an opportunity to resolve some of the important issues. But, ultimately, success will depend on the extent to which the government converts its statements and rhetoric into purposeful legislation.
There have been some significant wins for the environment along the way.
Parliamentarians insisted that important environmental principles, such as the precautionary principle must be set out in law, with the government eventually agreeing that they needed a statutory underpinning, accompanied by a policy statement to aid interpretation.
Initially, the government did not admit there would be a governance gap and suggested that a combination of existing bodies, parliament and judicial review would be sufficient to hold it to account. The parliamentary process was instrumental in shifting the government’s position, resulting in the publication of proposals for a new independent body to address the governance gap.
There was wide cross party support for the need to ensure that Brexit did not lead to any loss or diminution of environmental rights and protections, with collaboration across party political lines.
Several parliamentary champions stepped forward. They proposed and fought for amendments, delivered inspiring speeches, wrote letters and kept ministers on their toes. Special thanks are due to Lord Krebs, Baroness Jones of Whitchurch, Baroness Bakewell of Hardington Mandeville, Lord Deben, Baroness Brown of Cambridge, Baroness Jones of Moulsecoomb, Lord Wigley, Sir Oliver Letwin MP, Zac Goldsmith MP, Richard Benyon MP, James Heappey MP, Matthew Pennycook MP, Caroline Lucas MP, Mary Creagh MP and Kerry McCarthy MP.
Support was offered from the highest levels of government for maintaining and improving environmental standards. Defra secretary Michael Gove set the scene for a green Brexit with his ‘unfrozen moment’ speech and Theresa May made the first speech by a UK prime minister on the environment for over ten years.
Debates on their respective Continuity Bills led to commitments in Wales and Scotland to address the governance gap and enshrine environmental principles in law.
And, while environmental issues are often overshadowed by other priorities, the environment vied successfully with constitutional law issues. It spurred several hours of impassioned and expert debate, prompting many lines of ministerial commitment and reassurance on which to draw.
Votes were won, exemplifying both the determination and skill of parliamentarians in navigating delicate political discussions and a strong signal of intent for future parliamentary debates.
Finally, there was universal acceptance of the need for a new environment act, with government accepting an amendment to the bill that required a draft bill to be produced within six months of the Withdrawal Act receiving Royal Assent.
Major elements are still missing
But, for all the positives, there is much unfinished business to be addressed. The government has published a weak consultation. The enforcement power for the new watchdog comprises ‘advisory letters’, and a lacklustre approach to citizen complaints.
It envisages a very narrow application of the duty on principles, which would only apply to government ministers and not to other public authorities, as is currently the case; a parliamentary select committee has recently highlighted the shortcomings of ‘have regard to’ duties, which is the government’s current preferred wording.
We are concerned that an apparent lack of cross-government consensus risks undermining progress and could lead to weak ‘compromise’ legislation.
The withdrawal bill missed out crucial elements of the EU environmental law framework and did not address the need to carry across provisions from EU directives that are not transposed into UK law.
What’s more, the mission-critical question of how to ensure the independence of the green watchdog has been kicked into the long grass. Sir Amyas Morse, comptroller and auditor general of the National Audit Office, told the Environmental Audit Committee on 19 June that it was essential the new body was genuinely independent and “not within the reach of government”. There is no clue as to how the government intends to ensure that this is the case.
UK-wide action is also under threat. With both the consultation and forthcoming Environmental Principles and Governance Bill earmarked as ‘England only’, the opportunity to co-design an approach involving all four nations appears to be slipping away.
Margaret Mead once said: “Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it’s the only thing that ever has”. The passage of the bill is good evidence of the impact the collective efforts of parliamentarians and campaigners can have. A few months ago, the government was contesting whether there was a governance gap, environmental principles were hardly being debated and an environment act was merely a twinkle in the eye of green NGOs. Environmental issues are now firmly on the agenda. Parliament has spoken and the government must publish a draft bill by the end of the year. We are undoubtedly further forward, but we can’t relax yet. The battle is not won.